Margi Kathakali Yogam v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` WP(C) NO. 1079 OF 2013 ``` ## **`PETITIONER/S:`** ``` MARGI KATHAKALI YOGAM REPRESENTED BY ITS SECRETARY, DEVASWAM BOARD, A.C. OFFICE BUILDING, VALIYAKOICKAL KOTTARM, NEAR FORT HIGH SCHOOL, FORT P.O., THIRUVANANTHAPURAM-695 023. ``` ``` BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SMT.HENA BAHULEYAN SRI.P.K.MANOJKUMAR ``` ``` RESPONDENT/S: ``` ``` 1M.KRISHNAN NAIR S/O MADHAVAN PILLAI, PRESIDENT, TRIVANDRUM CITIZENS, PROTECTION FORUM, LEKSHMI VIHAR, PLOT NO.18, PADMA NAGAR, FORT P.O., THIRUVANANTHAPURAM-695 023. ``` - **`2 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAURAM-695 001.`** ``` 3THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD OFFICE, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. ``` ``` 4THE KERALA LOK AYUKTHA REPRESENTED BY ITS REGISTRAR, LEGISLATURE COMPLEX, VIKS BHAVAN P.O., THIRUVANANTHAPURAM-695 001. ``` ``` 2 ``` W.P.(C) No.1079 of 2013 ``` 5ADDL.R5. TEMPLE ADVISORY COMMITTEE REP.BY ITS SECRETARY, VETTAKKORUMAKAN SASTHA TEMPLE, FORT, THIRUVANANTHAPURAM (ADDL.R5 IS SUO MOTU IS IMPLEADED AS PER ORDER DATED 30.01.2013) ``` ``` BY ADVS. PIRAPPANCODE V.S.SUDHIR SRI.M.V.S.NAMBOOTHIRI, SC, TRAVANCORE DEVASWOM BOARD SRI.R.KRISHNAKUMAR, SC, TDB SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD B.ASHOK SHENOY K.V.GEORGE C.G.PREETHA P.N.RAJAGOPALAN NAIR ``` ``` OTHER PRESENT: ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI G.BIJU - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.11.2023, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C) No.1079 of 2013 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, which is a Society registered under the provisions of the Travancore-Cochin Literary Scientific and Charitable Registration Act, 1955, has filed this writ petition seeking a writ of certiorari to quash Ext.P5 report dated 17.12.2012 of the Kerala Lok Ayukta in Complaint No.1303 of 2011, which is one filed by the 1[st] respondent herein, who was the President of Trivandrum Citizens Protection Forum. 2. The 1[st] respondent filed the complaint alleging that the petitioner, who is in occupation of a portion of Valiyakoyikkal Palace, which belongs to the 3[rd] respondent Travancore Devaswom Board, had been taking steps to construct a shed unauthorisedly in the open space on the northern side of Vettakkorumakan Sastha Temple. The said open space is the courtyard of the temple (“Kshetra Anganam”), which is part of the temple. The Mandapam used for the religious ceremonies such as Kalamezhuthupattu and breaking of coconuts are situated in this open space. A well from which water is taken for the use of the temple also is in the courtyard. The 1[st] respondent contended that in the event of putting up such a shed, for which the 3[rd] respondent-Board tacitly accorded permission, that will adversely affect the rights of the ``` 4 ``` W.P.(C) No.1079 of 2013 devotees. 3. The 3[rd] respondent Board filed initially a counter affidavit and later an objection before the Lok Ayukta. The Board contended that the petitioner is in possession of a portion of Valiyakoyikkal Palace, which was let out to it by the Board. The petitioner uses the Mandapam in the open space for performing Kathakali and Koodiyattam, which are temple arts. There used to be a few viewers while performing those art forms, which happens only occasionally. In order to protect viewers from rain, a plastic sheet was used to be erected. Now, a temporary roof is proposed to be put up by the petitioner in that open area. The 3[rd] respondent Board took a stand first in the objection that permission was not granted to the petitioner for putting up any temporary structure. However, subsequently in its counter the Board changed its stand by stating that after having discussion with the authorities concerned, it had accorded permission for erecting a temporary roof. 4. The petitioner filed a statement before the Lok Ayukta. It had contended that the dispute involved was one of a civil nature and the Lok Ayukta had no jurisdiction to entertain such a complaint. It was further contended that on expecting permission from the 3[rd] respondent Board, the petitioner had collected ``` 5 ``` W.P.(C) No.1079 of 2013 materials for erecting the temporary roof over the open area adjoining its office. That would not amount to trespass or carrying out any unauthorised construction. The sole objective of erecting such a roof is to protect the viewers from unexpected rain. The Board has a duty to promote temple arts and in consideration of that only a portion of the ground floor of Valiyakkoyikkal Palace was let out to the petitioner. The petitioner is in possession of 249.92 M[2] area. Initially, no rent was stipulated; service charge of Rs.30/- alone was to be paid. However, subsequently the Board asked the petitioner to pay monthly rent of Rs.5,000/-. Since the petitioner was not in a position to pay such an exorbitant rate of rent, it has submitted a representation for reducing the rate of rent. Accordingly, the rent was reduced to Rs.1,000/- per month, which is being paid. The petitioner thus took a stand that the Lok Ayukta could not have entertained such a complaint. 5. The Lok Ayukta, after considering the matter in detail, recorded the following findings; “(1) In the interest of the temple and also of the devotees, giving permission to the third respondent for putting up a structure in the courtyard of the temple very close to the Mandapam and the well from which water it taken for the use in the temple in connection with the rituals performed there is highly improper. (2) The decision taken by the Travancore Devaswom Board ``` 6 ``` W.P.(C) No.1079 of 2013 for giving permission to the third respondent for erecting a structure in the courtyard of the temple is unreasonable and unjust and is in abuse of its position, for doing favour to the third respondent. (3) The decision of the Travancore Devaswom Board has resulted in injustice and hardship to the worshipers in the temple including the complainant. - (4) Third respondent has no right to erect any structure in the temple premises.” 6. Consequently, recommendations were made by the Lok Ayukta to the competent authority, vide Ext.P5 report dated 17.12.2012, which is sought to be quashed in this writ petition. The petitioner would contend that the Lok Ayukta did not have the competence to entertain the said complaint. First of all, the dispute was one of a civil nature and secondly, the allegations in the complaint do not come within the scope of enquiry under Section 7 of the Lok Ayukta Act, 1999. It is further contended that the petitioner has been in occupation of the premises in question since 1974. The petitioner is conducting Kathakali and Koodiyattam performances at the courtyard of the Palace, which is in the interest of the devotees. No inconvenience will be caused in the temple or to the devotees due to such performance. The bona fides of the 1[st] respondent in filing such a complaint is also questioned. 7. On 16.01.2013, when this writ petition came up for ``` 7 ``` W.P.(C) No.1079 of 2013 admission, after hearing the learned Senior Government Pleader and also the learned Standing Counsel for the Travancore Devaswom Board, this Court granted an interim order that if there was any proposal for taking action on the basis of the report of the Lok Ayukta, the same shall not be effectuated till 30.01.2013. The said order was later extended until further orders. 8. The 1[st] respondent expired on 11.09.2022. The learned counsel for the 1[st] respondent filed a memo stating that the Forum, namely, Trivandrum Citizens Protection Forum, for which the 1[st] respondent filed the complaint, has become defunct and no one else has come forward to take up the responsibility. In such circumstances, no impleading is required or possible. 9. The 3[rd] respondent Board filed a counter affidavit explaining the nature of possession of the premises by the petitoner, the present rent and also as to the attempt to erect the roof. Paragraph Nos.5 to 11 of the counter affidavit read as follows: “5. It is submitted that during 1974-1975, the petitioner used to occupy the above building on payment of Rs.50/- as service charge. Thereafter as per ROC 2429/05/M dated 31.01.2006 of the Board and order dated 13.07.2006 of the Devaswom Commissioner, the ground floor of the above building was given on monthly rent for Rs.5,000/- and the first floor was given to Viswa Hindu Parishath for a rent of Rs.7,000/- per month. It was directed to renew the agreement at the above rate. Accordingly, the Sub Group ``` 8 ``` W.P.(C) No.1079 of 2013 Officer, Mithranandapuram Sub Group issued letters No.117 dated. 11.03.2006 and No.159 dated 6.11.2006 asking the petitioner to contact the Assistant Devaswom Commissioner to execute the agreement and to deposit rent in the Devaswom Account. Thereafter considering the requests from the petitioner, from the Board issued orders to execute agreement with effect from 01.07.2009 and to waive the rent arrears in the revised rate till that date. 6. It is submitted that the Sub Group Officer, Mithranandapuram Sub Group has given letter No.98 dated 01.08.2009 to the petitioner asking to execute the agreement with effect from 01.07.2009. But the petitioner did not care to execute the agreement nor to remit the rent in the revised rate. Therefore the Sub Group Officer, Mithranandapuram Sub Group has given letter No.14 dated 02.08.2009 asking the petitioner to immediately contact the Assistant Devaswom Commissioner and to execute the agreement, or else the department will be compelled to initiate legal proceedings. 7. At this stage, the petitioner has given a representation dated 29.08.2009 before the Devaswom Commissioner stating that the petitioner is not in a position to remit rent at the rate of Rs.5,000/- per month due to financial difficulties and requested to reduce the rent to Rs.1,000/- per month. But the Devaswom Commissioner as per ROC 3346/93/M dated 7.4.2010 ordered to initiate legal proceedings against the tenants who fail to execute agreement and to remit the revised rent. 8. It is submitted that as per the orders of the Devaswom Commissioner, the files were forwarded to the Devaswom Advocate and advocate notice was issued to the petitioner. But the petitioner did not give any reply to the legal notice. ``` 9 ``` W.P.(C) No.1079 of 2013 At this juncture, the petitioner submitted a request dated 13.07.2010 before the Chief Commissioner requesting to reduce the rent. The Chief Commissioner, who was exercising powers of the Board and as per order, ROC 2429/05/M dated 24.07.2010, issued orders fixing the rent of Margi Kalakendram to Rs.1,000/- per month and further directed to collect the pre-revised rent of Rs.200/- per month upto 31.3.2010 and to execute the agreement with effect from 01.04.2010 for a period of 3 years. The water charges and electricity charges were directed to be paid by the petitioner. Accordingly, an agreement was executed by the petitioner fixing monthly rent of Rs.1,000/- from 01.04.2010 onwards and rent was collected accordingly. 9. It is submitted that, thereafter as per ROC 15912/13/M dated 06.01.2015, the rent was enhanced to Rs.2,000/- per month and agreement was executed agreeing to pay 10% annual hike in the rent. At present Rs.3,543/- is the monthly rent collected from the petitioner. 10. It is submitted that as per the order dated 17.12.2012 passed by the Hon'ble Lok Ayukta, Board has issued ROC 11173/13/M dated 18.07.2013 directing the petitioner not to make any construction in the temple premises and not to encroach on the temple compound and to remove the construction materials stocked by the petitioner in the temple compound. Further as per ROC 104/18/Land dated 22.01.2013, the Assistant Devaswom Commissioner was authorized to initiate legal proceedings against the petitioner, if they violate the conditions in the rental agreement. Accordingly, letter dated 27.06.2013 was issued to the petitioner to which petitioner replied stating that they are not doing any work and only ties a tarpaulin during the rainy season for the viewers. ``` 10 ``` W.P.(C) No.1079 of 2013 11. It is submitted that though the Board got a favourable order from the Hon'ble Lok Ayukta, on the strength of the stay obtained in this writ petition, the petitioner is conducting programmes in the temporary shed. Though several letters were issued to the petitioner asking to remove the temporary shed, but without caring that petitioner continues to conduct programmes in the temporary shed unauthorisedly. The petitioner is continuing in the Devaswom land on nominal rent. The building is situated in the heart of Thiruvananthapuram City. Petitioner is liable to pay rent in the present market rate for the area presently occupied by it. Now steps are being taken to revise the rent in the present DSR rate.” 10. The petitioner filed a reply affidavit, essentially reiterating its stand in the writ petition. 11. On 10.01.2023, when this matter came up for consideration, this Court noticed that the first floor of the Valiyakoyikkal Palace is occupied by various organisations. The 3[rd] respondent was therefore directed to file an affidavit furnishing details of such occupants. Consequently the 3[rd] respondent filed an additional counter affidavit dated 21.02.2023, wherein it is stated that the present rent for an area of 2,690 sq.ft in the occupation of the petitioner is Rs.3,898/- per month. It is further stated in the affidavit that in the first floor of the building, a major portion having an area of 4,363 sq.ft is in occupation of Viswa Hindu Parishad and a small portion is occupied by the office of the ``` 11 ``` W.P.(C) No.1079 of 2013 Deputy Devaswom Commissioner, Thiruvananthapuram. It is also stated that the 3[rd] respondent filed O.S.No.649 of 2012 before the Munsiff's Court, Thiruvananthapuram to evict Vishwa Hindu Parishad and although the Munsiff decreed that suit, on appeal, the Additional District Court, Thiruvananthapuram reversed that decree. The Board is taking steps to challenge the said appeal before this Court. 12. The Temple Advisory Committee, Vettakkorumakan Sastha Temple, Fort, Thiruvananthapuram was _suo motu_ impleaded as additional 5[th] respondent as per the order dated 30.01.2013. Considering the reduction of rent for the premises in possession of the petitioner and the manner in which the rent was seen reduced, this court directed the 3[rd] respondent to produce relevant files for our perusal. Accordingly, the learned Standing Counsel for the 3[rd] respondent produced the files and we have perused it. The file was later returned. 13. Heard the learned Senior Counsel for the petitioner, the learned Senior Government Pleader and the learned Standing Counsel for the Travancore Devaswom Board. 14. The petitioner contended at the outset that the Lok Ayukta did not have jurisdiction to entertain complaint No.1303 of 2011-B inasmuch as the averments in the said complaint ``` 12 ``` W.P.(C) No.1079 of 2013 constitute a dispute of a civil nature and would not amount to a matter which can be entertained by the Lok Ayukta in exercise of its power under Section 7 of the Kerala Lokayukta Act. The learned Senior Counsel would submit that the 1[st] respondent-complainant could not have any grievance in the matter for, Kathakali and Koodiyattam, which are temple arts and promotion of the same being obligation of the Travancore Devaswom Board, are performed at the Mandapam at the courtyard of Valiyakoyikkal Palace is a permissive act. In the year 1974 itself, a portion of the said building was allotted to the petitioner initially, on payment of service charges and later on rent. The petitioner started performing the said art forms in the Mandapam as permitted by the 3[rd] respondent. The temporary shed was proposed to be erected with a view to provide protection of the viewers of the said art forms in unexpected rains and the 3[rd] respondent had permitted it. Therefore, the same could not be a reason for a grievance to the complainant. 15. Section 2(o) of the Kerala Lok Ayukta Act defines ‘public servant’. The Chairman and Vice-Chairman (by whatever name called) of a statutory body established by or under any law of the State Legislature and every person in the service of such a statutory body comes within the purview of Section 2(o) and ``` 13 ``` W.P.(C) No.1079 of 2013 therefore, they are public servants. Section 2(h) of the Act defines ‘grievance’ to mean a claim by a person that he sustained injustice or undue hardship in consequence of maladministration. Section 2(k) of the Act defines ‘maladministration’ to mean action taken or purporting to have been taken in the exercise of administrative functions in any case where, (i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or (ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay. 16. The 1[st] respondent approached the Lok Ayukta alleging that the 3[rd] respondent Board, which indisputably is a statutory body constituted under the provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950, not only failed to prevent the attempt of the petitioner herein to trespass upon and put up a shed at the courtyard of the Vettakkorumakan Sastha Temple, but also gave tacit permission for the same. In Ext.P2 complaint it was alleged that the attempt of the petitioner herein is to put up a shed in the premises of the temple for performing Kathakali in a commercial manner, inviting people from all religions including foreigners. Such an activity will adversely affect the sanctity of the ``` 14 ``` W.P.(C) No.1079 of 2013 temple and wound the religious feelings of the devotees. The petitioner herein is getting a grant of about Rs.25 lakhs per annum from the Government. The area of the building let out to the petitioner herein by the 3[rd] respondent Travancore Devaswom Board is 249.92 meter square on the ground floor and the monthly rent of Rs.5,000/- was fixed vide letter dated 31.01.2006, a copy of which is marked as Ext.P6 in the complaint, which is too meagre for area having an extent of 2690 sq.ft. The petitioner herein exerted influence over the 3[rd] respondent Travancore Devaswom - Board and got the monthly rent of Rs.5,000/ reduced to - Rs.1,000/ , for 2690 sq.ft of area, vide proceedings dated 27.07.2010 of the Board, a copy of which is marked as Ext.P7 in the complaint. 17. The petitioner has no claim that the courtyard of the temple was let out to it. Of course, it has a claim that permission was granted to perform Kathakali and Koodiyattam at the Mandapam in the courtyard and the viewers used to sit in the area in front of the Mandapam, which forms part of the courtyard. Even if it is true that the petitioner performs such art forms at the Mandapam, that does not mean that the petitioner has domain over the courtyard. Hence, the petitioner cannot claim any right to put up a shed there. Admittedly, the petitioner had collected ``` 15 ``` W.P.(C) No.1079 of 2013 materials at the courtyard of the Temple for the erection of such a shed. The 1[st] respondent filed the complaint before the Lok Ayukta raising specific allegations of maladministration, who has made out a case in Ext.P2 complaint to invoke the jurisdiction of the Lok Ayukta. 18. The learned Senior Counsel for the petitioner placed reliance in **Vinod Kumar V. and another v. Kerala Lok Ayukta and others [2016 (3) KHC 945], Commissioner of Police, Thiruvananthapuram and others v. Abida Beevi and another [2016 (5) KHC 537]** and **Sathish Kumar v. Juhunu [2020 (6) KLT 581]** in order to gain support to the contention that complaint No.1303/2011B should not have been entertained by the Lok Ayukta. 19. In **Vinod Kumar [2016 (3) KHC 945]** the question was concerning offering of appointment to the petitioners therein as Readers in a college. This Court held that the petitioners or the college would not answer to the description of the public servant under Section 2(o) of the Kerala Lok Ayukta Act and accordingly the complaint was found not maintainable. In **Abida Beevi [2016** **(5) KHC 537]** the question was regarding an order allowing arrears of salary to policemen. A Division Bench of this Court after considering the provisions of the Lok Ayukta Act held that the ``` 16 ``` W.P.(C) No.1079 of 2013 complaint was not concerning any grievance as defined in the statute and hence it was not maintainable. In **Sathish Kumar [2020 (6) KLT 581]** another Division Bench of this Court considered the legality of the direction issued by the Lok Ayukta to initiate action against the petitioner therein, who was a Lecturer in an aided college, in regard to the alleged negligence and indifference in valuing an answer book of a candidate. This Court held that from the statutory provisions contained in the Lok Ayukta Act, a teacher of an aided educational institution does not come within the definition of a public servant and accordingly the order of the Lok Ayukta was found illegal. 20. The law laid down in the aforesaid decisions has no application to the facts of the case on hand. Here, the grievance of the 1[st] respondent is with respect to the act of a statutory body, the 3[rd] respondent Board and its officials. We are of the view that the complaint was certainly maintainable and the Lok Ayukta cannot be found fault with in entertaining the complaint. 21. The petitioner took a definite stand before the Lok Ayukta that it had collected materials for the construction of a temporary roof. The proposal is to erect the roof in front of the Mandapam, where Kathakali and Koodiyattam are performed. The petitioner contended before the Lok Ayukta that it had a discussion ``` 17 ``` W.P.(C) No.1079 of 2013 with the President and Chief Engineer of the Travancore Devaswom Board, and then only they collected materials to erect the roof. The fact that materials were so collected by the petitioner is confirmed by the 3[rd] respondent as well. From the said fact, it reveals that the petitioner not only had a proposal, but also took steps for erection of the shed. 22. The petitioner does not have a case that it entered into a rental arrangement concerning the Mandapam and the courtyard. The stand taken by the petitioner as well as the 3[rd] respondentBoard is that 249.92 M[2 ] (2690 sq.ft.) area on the ground floor of Valiyakoyikkal Palace alone was let out to the petitioner. If so, the petitioner has no right to erect a roof in the courtyard. Any act of erecting such a roof and occupying the open space therefore will amount to trespass. 23. The 3[rd] respondent Board did not take before the Lok Ayukta a definite stand as to whether permission for erecting a roof was given or not. However, in the counter affidavit filed before this Court, the 3[rd] respondent Board specifically stated that no such permission was granted. In such circumstances, the Lok Ayukta in Ext.P5 order found that the grant of permission by the Travancore Devaswom Board to the petitioner herein for erecting a structure in the courtyard of Vettakkorumakan Sastha Temple is ``` 18 ``` W.P.(C) No.1079 of 2013 unreasonable and unjust and in abuse of its position, for doing favour to the petitioner, which had resulted in injustice and hardship to the devotees. The Lok Ayukta in Ext.P5 order noticed that the permission granted by the Board to the petitioner for putting up a structure in the courtyard of the temple, very close to the Mandapam and the well from which water is being taken for the use in the temple in connection with the rituals performed there is highly improper. The aforesaid findings of the Lok Ayukta are neither perverse nor patently illegal, warranting an interference in this writ petition, in exercise of the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 24. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per the provisions under Section 3 of the Act, the administration of incorporated and unincorporated Devaswoms shall vest in the Travancore Devaswom Board. 25. As per Section 15A of the Act, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the ``` 19 ``` W.P.(C) No.1079 of 2013 practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. 26. Section 31 of the Act deals with management of Devaswoms. As per Section 31 of the Act, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 27. Section 31A of the Act deals with the formation of the Temple Advisory Committees. As per subsection (1) of Section 31A of the Act, a Committee for each temple in the name ‘Temple Advisory Committee’ (name of the temple) may be constituted order to ensure participation of Hindu devotees. As per sub-section (2) of Section 31A, the Temple Advisory Committee constituted under sub-section (1) may be approved by the Board. As per sub-section (3) of Section 31A, the composition of an Advisory Committee under sub-section (1) shall be in such manner as may ``` 20 ``` W.P.(C) No.1079 of 2013 be prescribed by the rules made by the Board, not inconsistent with any practice prevailing, if any. In terms of sub-section (3) of Section 31A of the Act, the Travancore Devaswom Board framed the Rules for the formation of Temple Advisory Committees in the temples under the management of the Board, with has been approved by this Court vide order dated 03.11.2011 in DBA No.153 of 2009. ## 28. In **Major Vellayani Devi Temple Advisory** ## **Committee v. State of Kerala [2023 (2) KHC 290]** a Division Bench of this Court, in which both of us were parties, held that in view of the provisions of the Travancore-Cochin Hindu Religious Institutions Act, the Travancore Devaswom Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Vellayani Bhadrakali Devi Temple are performed promptly; and to establish and maintain proper facilities in Vellayani Bhadrakali Devi Temple for the devotees. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Vellayani Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Vellayani Bhadrakali Devi Temple according to the usage. The Temple Advisory Committee of a temple under the management of the ``` 21 ``` W.P.(C) No.1079 of 2013 Travancore Devaswom Board, which consists of devotees who fall under the eligibility criteria prescribed in Clause (3) of the Rules framed under sub-section (3) of Section 31A of the Act, is duty bound to render necessary assistance to the Board and its officials for the smooth functioning of the temple activities and festivals according to the usage. 29. In **Rajalekshmi P. v. State of Kerala [2023 (3) KHC 491]** a Division Bench of this Court, in which both of us were parties, held that, in view of the provisions of the TravancoreCochin Hindu Religious Institutions Act, the Travancore Devaswom Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Vellayani Bhadrakali Devi Temple are performed promptly and arrange for the conduct of the daily worship and ceremonies and of the festivals in Vellayani Bhadrakali Devi Temple according to the usage. The Temple Advisory Committee of the said temple, which consists of devotees who fall under the eligibility criteria prescribed in Clause (3) of the Rules framed under sub-section (3) of Section 31A of the Act, is duty bound to render necessary assistance to the Board and its officials for the smooth functioning of the temple activities and festivals according to the usage. In that view of the matter, the petitioner cannot invoke the writ ``` 22 ``` W.P.(C) No.1079 of 2013 jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the Travancore Devaswom Board and its officials to include Kuzhithalachal and Kalluvila wards in Vellayani in the list for Kalliyoor Dikkubali in Vellayani Sree Bhadrakali Temple, in violation of the accepted boundary limit followed from time immemorial. 30. In view of the statutory provisions referred to hereinbefore and also the law laid down in the decisions referred to supra, we find absolutely no reason to justify the conduct of the Travancore Devaswom Board in granting permission to the petitioner herein for putting up structures in the courtyard of Vettakkorumakan Sastha Temple, very close to the Mandapam and well from which water is being taken for the use in the temple in connection with the rituals performed there. ## 31. In **A.A. Gopalakrishnan v. Cochin Devaswom** **Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by ``` 23 ``` W.P.(C) No.1079 of 2013 setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 32. In **Travancore Devaswom Board v. Mohanan Nair** **[2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. 33. In **M.V.Ramasubbiar v. Manicka Narasimachara** ``` 24 ``` W.P.(C) No.1079 of 2013 **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs.21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best ``` 25 ``` W.P.(C) No.1079 of 2013 advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law ``` 26 ``` W.P.(C) No.1079 of 2013 although it had a direct bearing on the controversy before it.” (underline supplied) 34. In **Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Ker 1642]** - judgment dated 09.02.2022 in W.P.(C)No.2254 of 2022 - a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri Narasimha-swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs. 10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65]** this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in ``` 27 ``` W.P.(C) No.1079 of 2013 the Estate Division of the Travancore Devaswom Board. ## 35. In **Suneesh K.S. v. Travancore Devaswom Board** **[ILR 2022 (1) Ker. 1091 : 2022 SCC OnLine Ker 611]** this Court noticed that, as per clause (8) of the tender conditions, the Travancore Devaswom Board has the right to cancel the bid of successful bidders who failed to remit the entire amount within the time stipulated by the Board and to conduct re-auction. In which event, the original bidder will be responsible for the loss, if any, sustained by the Board. As per clause (10) of the tender conditions, the successful bidder will be liable to pay 18% interest for belated remittance of instalments. In case of default in remitting the said amount, i.e., defaulted instalments together with 18% interest, the Board will have the right to initiate appropriate legal proceedings against the bidder for recovering the loss caused to it. As per clause (12) of the tender conditions, in case the bidder has defaulted payment of bid amount in any manner, which has resulted in the Board sustaining loss, the Board shall have the right to proceed against the movable and immovable properties of the bidder for recovering the said loss. Proceedings under clause (23) of the tender conditions shall also - be initiated against such defaulters, for black listing. 36. In **T. Krishnakumar v. Cochin Devaswom Board** ``` 28 ``` W.P.(C) No.1079 of 2013 **[2022 (5) KHC SN 8 : 2022 (4) KLT 798]** , a Division Bench of this Court, in which both of us were parties, held that in view of the law laid down by this Court in **Abu K.S. v. Travancore Devaswom Board [2022 SCC OnLine Ker 1642]** , relying on the decision of the Apex Court in **M.V. Ramasubbiar v. Manicka Narasimachara [(1979) 2 SCC 65]** , while leasing out the buildings owned by the Devaswoms, the Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said buildings. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. The action of the Board as a trustee cannot be equated to that of mere landlord. The best interest of the Devaswoms under the control of the Board would be subserved only if income is generated. 37. In **T. Krishnakumar [2022 (5) KHC SN 8]** , the Division Bench noticed that the major source of revenue of Cochin Devaswom Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the temples and also the rental income generated from the buildings owned by the respective Devaswoms. Therefore, while dealing with the ``` 29 ``` W.P.(C) No.1079 of 2013 buildings owned by the Devaswoms, Cochin Devaswom Board and its officials have to ensure that proper income is generated from the said building. In such transactions, the Board and its officials have to show reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs, by ensuring that the lease rental or licence fee of the buildings owned by the Devaswoms is not lower than the prevailing market rent. The action of the Board in demanding lease rental or licence fee for the buildings owned by the Devaswoms taking into consideration the prevailing market rent cannot be termed as an action of the - Board demanding exhorbitant or rack rent, since, while leasing out the buildings owned by the Devaswoms, the Board and its officials have to ensure that proper income is generated from the said buildings. 38. The Travancore Devaswom Board, being a trustee in management of Devaswom property, cannot occasion any loss to the Trust and it is the duty of the Board to act in good faith in all matters of the Deity and the Temple. In that view of the matter, any attempt to erect a roofed shed at the courtyard of the Temple by the petitioner could not have been allowed by the 3[rd] respondent Travancore Devaswom Board. The 3[rd] respondent Board has every duty as a trustee of the Temple to see that there ``` 30 ``` W.P.(C) No.1079 of 2013 occur no such trespass or unauthorised act and inaction on its part to take action in that regard will amount to dereliction of duties and breach of trust. 39. In the additional affidavit filed by the 3[rd] respondent Board, it is stated that the rent for the premises in the occupation of the petitioner having an area of 249.92 M[2] (2690 sq.ft.) was fixed as Rs.5,000/- as per the Board order dated 13.07.2006. Later, the rent was reduced to Rs.1,000/-. From the perusal of the files relating to the said developments, produced by the 3[rd] respondent, it is seen that such a decision to reduce the rent from Rs.5,000/to Rs.1,000/- was taken by Sri.K.Jayakumar, Additional Chief Secretary to Government, who was the Chief Commissioner holding charge of the Travancore Devaswom Board under Section 13A of the Travancore Cochin Hindu Religious Institutions Act, 1950. The Travancore Devaswom Board ceased to be in existence for a short while. Sri.K.Jayakumar, who was the Additional Chief Secretary and Chief Commissioner then was put in charge of the Travancore Devaswom Board by virtue of Section 13A of the said Act. In exercise of that power, he took a decision for and on behalf of the Travancore Devaswom Board to reduce the rent from Rs.5,000/- to Rs.1,000/-. 40. In that view of the matter, the decision to reduce the ``` 31 ``` W.P.(C) No.1079 of 2013 rent from Rs.5,000/- to Rs.1,000/- for the premises in the possession of the petitioner is illegal. The 3[rd] respondent Board was obliged to fix reasonable rent for the tenanted premises in the possession of the petitioner and to realise the rent at such rate. As pointed out above, the Travancore Devaswom Board is a trustee of all the Temples under it. While a property belonging to a Temple under its administration is let out, the Board has every responsibility to see that the prevailing market rate is fixed and realised. 41. It is contended by the 3[rd] respondent Board that the rent was subsequently enhanced and now the petitioner is paying rent at the rate of Rs.3,898/- per month. The obligation of the 3[rd] respondent is to ensure that the rent is fixed at the prevailing market rate. Even after the judgment of this Court in **Abu K.S.** **[2022 SCC OnLine Ker. 1642]** the 3[rd] respondent Board failed to take necessary steps in this regard against the petitioner herein and also other tenants/licensees of buildings/shop rooms owned by the Devaswoms under its management. On noticing from Ext.P2 complaint made before the Lok Ayukta by the 1[st] respondent herein that the monthly rent for the premises in the occupation of the petitioner having an area of 2690 sq.ft. was arbitrarily reduced from Rs.5,000/- to Rs.1,000/- by proceedings ``` 32 ``` W.P.(C) No.1079 of 2013 dated 27.07.2010 of the Additional Chief Secretary to Government, who was the Chief Commissioner holding the charge of the Travancore Devaswom Board under Section 31A of the Travancore Cochin Hindu Religious Institutions Act, the Board ought to have taken steps to refix the monthly rent at the prevailing market rent. It is pertinent to note at this juncture that DBP No.72 of 2023 initiated _suo motu_ in the matter of litigations pending before various courts in which the Travancore Devaswom Board, Cochin Devaswom Board or the Guruvayur Devaswom Managing Committee is a party, is pending consideration of this Court. 42. In the additional affidavit filed by the 3[rd] respondent, it is stated that a major portion of the first floor on the Valiyakoyikkal Palace is in unauthorised occupation of Vishwa Hindu Parishad. Paragraph No.3 in the additional counter affidavit states as follows:- “3. It is submitted that the Board filed O.S No.649/2012 before the Munsiff's Court, Thiruvananthapuram to evict Vishwa Hindu Parishad from the Devaswom building and the suit was decreed directing the defendants to remove themselves from the property. The arrears of rent sought was refused. The Vishwa Hindu Parishad filed A.S No.53/2022 before District Court, Thiruvananthapuram challenging judgment and decree passed by the learned Munsiff. The District Court allowed the Appeal as per judgment dated 16.11.2022, setting aside the judgment and ``` 33 ``` W.P.(C) No.1079 of 2013 decree passed by the learned Munsiff and dismissing the suit. The Board is taking steps to challenge the Judgment of the Appellate Court.” 43. Going by the judgment of the District Judge, Thiruvananthapuram in A.S.No.53 of 2022, Vishwa Hindu Parishad is not a tenant in the premises in their possession. If so, the possession can only be termed as unauthorised. If anyone possesses an immovable property belonging to the Travancore Devaswom Board, that would attract the provisions of Section 27 of the Travancore Cochin Hindu Religious Institutions Act. Since the said matter is not a dispute involved in this writ petition and the Vishwa Hindu Parishad is not a party, we do not propose to make any further observation in that regard. In the light of our findings in paragraphs 20 and 23, the contention of the petitioner that Ext.P5 is liable to be quashed, is without any basis. Accordingly, the writ petition fails and the same is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr ``` 34 ``` W.P.(C) No.1079 of 2013 ## **`APPENDIX OF WP(C) 1079/2013`** ## **`PETITIONER’S EXHIBITS:`** |**`EXT.P1`**|**`THE PHOTOSTAT COPY OF THE PROCEEDINGS`**<br>**`NO.R.O.C.2429/M. DATED 24.07.2010 ISSUED BY`**<br>**`THE SECRETARY, TRAVANCORE DEVASWOM BOARD,`**<br>**`TRIVANDRUM`**| |---|---| |**`EXT.P2`**|**`THE PHOTOSTAT COPY OF THE COMPLAINT NO.1303`**<br>**`OF 2011 B DATED 13.07.2011 FILED BY M.`**<br>**`KRISHNAN NAIR, BEFORE THE HON’BLE KERALA`**<br>**`LOK AYUKTHA, TRIVANDRUM.`**| |**`EXT.P3`**|**`THE PHOTOSTAT COPY OF THE STATEMENT COMPLAINT`**<br>**`NO.1303 OF 2011 DATED 06.09.2011 FILED BY N.`**<br>**`KRISHNAN NAIR, BEFORE THE HON’BLE KERALA LOK`**<br>**`AUKTA, TRIVANDRUM.`**| |**`EXT.P4`**|**`THE PHOTOSTAT COPY OF THE STATEMENT COM-`**<br>**`PLAINT NO.1303 OF 2011 DATED 09.12.2011`**<br>**`FILED BY N. KRISHNAN NAIR, BEFORE THE`**<br>**`HON’BLE KERALA LOK AUKTA, TRIVANDRUM.`**| |**`EXT.P5`**|**`THE PHOTOSTAT COPY OF THE ORDER DATED`**<br>**`17.12.2012 COMPLAINT NO.1303/2011 (B) PASSED`**<br>**`BY THE HON’BLE KERALA LOK AUKTA, TRIVANDRUM.`**| |**`Ext.P6`**|**`THE PHOTOSTAT COPY OF THE RENT DEED EXECUTED`**<br>**`BY THE SOCIETY IN FAVOUR OF THE THIRD RE-`**<br>**`SPONDENT NO.2303 DATED 22.4.2016.`**| |**`EXT.P6`**|**`THE PHOTOSTAT COPY OF THE RECEIPT FOR PAYMENT`**<br>**`OF RENT RECEIVED BY THE PETITIONER FROM THE`**<br>**`THIRD RESPONDENT NO.75785 DATED 9.11.2022.`**| |**`EXT.P7`**|**`THE PHOTOSTAT COPY OF THE REPRESENTATION`**<br>**`NO.MARGI/ADMIN/TD/2022-23 DATED 18.11.2022`**<br>**`SUBMITTED Y THE PETITIONER SOCIETY, TO THE`**<br>**`PRESIDENT, TRAVANCORE DEVASWOM BOARD, TRI-`**<br>**`VANDRUM.`**|